October 14, 2026
The Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) have proposed removing the regulatory requirement to defer to certain prior USCIS approvals when adjudicating Form I-129 extension requests. The proposal, titled “Removing Deference to Prior USCIS Determinations of Eligibility,” appears at 91 FR 65119 under docket USCIS-2026-0529 and RIN 1615-AD26.
This is a proposed rule, not a rule in effect. As of October 14, 2026, the existing regulation and policy remain in place. Employers should continue to follow current requirements unless and until a final rule takes effect.
For employers sponsoring H-1B and L-1 workers, the proposal is a reason to strengthen extension preparation now. It is not a reason to assume that a prior approval will guarantee the next one.
What USCIS proposes to change
Current 8 CFR 214.1(c)(5) generally instructs USCIS to defer to an earlier eligibility determination when an I-129 extension involves the same parties and underlying facts. The regulation allows USCIS to depart from that prior determination if there was a material error, a material change, or new material information that adversely affects eligibility.
DHS proposes to remove that provision. If finalized, USCIS officers would no longer be required to begin an extension review from a position of deference. Officers could still consider an earlier approval where relevant, but would assess the current petition based on its record and the petitioner’s evidence of continued eligibility.
The proposal covers Form I-129 nonimmigrant worker benefit requests. It therefore includes H-1B and L-1 petitions, as well as other classifications that use Form I-129. It would not itself change the substantive eligibility requirements for these classifications.
Why employers should prepare for a fuller review
DHS states that the proposal is intended to support full review of each petition, reinforce the petitioner’s burden to establish eligibility, and strengthen program integrity. Employers and workers, in turn, may face greater uncertainty and additional planning burdens if requests for evidence (RFEs) become more common or extensions take longer to resolve.
The agency’s estimates are based on historical data. They are not predictions of a specific employer’s case outcome:
- DHS estimates that removing deference could result in approximately 6,044 additional RFEs annually.
- Using FY 2022–FY 2025 data, DHS estimates an RFE-associated processing-time difference of 64 calendar days.
- DHS estimates a 2.9 percentage-point increase in the RFE rate, based on a historical comparison of periods with and without deference.
- DHS reports that its historical analysis found no corresponding change in denial rates.
The 64-day figure compares average median processing times for petitions with and without an RFE. It does not mean every extension will take 64 days longer. Similarly, the estimated rise in RFEs does not establish that any particular H-1B visa 2026 or L-1 visa extension will receive an RFE.
How employers can strengthen I-129 extension filings
Employers should prepare each extension as a fresh, current record that demonstrates the worker and position continue to qualify. A prior approval can provide helpful context, but it should not substitute for evidence supporting the present filing.
Before filing an H-1B or L-1 extension, coordinate with HR, the employee’s manager, payroll, and immigration counsel to confirm and document:
- Job duties and work arrangement: The beneficiary’s actual duties, role, reporting structure, worksite or worksites, and any remote or third-party placement details.
- Qualifications: The beneficiary’s education, experience, credentials, and other qualifications relevant to the classification and position.
- Wage and payroll: Current compensation, payroll records, and consistency between the petition, wage documentation, and actual employment.
- Employer operations and contracts: Current business operations, the employer-employee relationship, work availability, client or project documentation where relevant, and any contracts or statements of work supporting the position.
- Maintenance of status: Records needed to establish the beneficiary’s immigration status and compliance with the conditions of the current classification.
- Changes since the last filing: Changes to duties, compensation, worksite, organizational structure, contracts, employer operations, or other facts that may affect eligibility.
The evidence should reflect the facts as they exist at filing and remain consistent across the petition, supporting documents, and employer records. If a material change has occurred, discuss its immigration consequences with counsel before filing. A complete extension record supports adjudication; it does not guarantee approval.
Build earlier timelines and an RFE response process
A fuller record takes time to assemble. Employers should review upcoming expiration dates early enough to resolve documentation gaps and plan for possible follow-up requests. An internal extension calendar can identify responsible teams, document collection milestones, and counsel review dates.
Employers should also establish a response process before an RFE arrives. Assign a point person to route USCIS notices promptly, identify relevant business and payroll records, obtain manager input, and coordinate the response with immigration counsel. RFE deadlines are case-specific. Missing a response deadline can jeopardize the petition.
This process should operate alongside, not replace, existing I-9 compliance and workforce compliance procedures. Employers should maintain accurate employment authorization records and review work authorization questions on their specific facts. An I-129 extension filing does not by itself resolve every question about a worker’s authorization to remain or work.
Timely filed extensions require case-specific review
Under applicable rules, a timely filed I-129 extension may allow a worker to remain in an authorized period of stay while USCIS adjudicates the request. In some situations, the worker may also be eligible to continue working under the applicable regulations. These consequences depend on the classification, filing timing, worker’s circumstances, and governing rules; they are not automatic or universal.
Employers should not make staffing, travel, or project decisions based only on a filing receipt or a prior approval. Consult immigration counsel to assess the specific case and applicable work authorization rules.
Public comments are due November 13, 2026
DHS is accepting comments on the proposal through November 13, 2026. Employers and stakeholders may review the Federal Register rule and submit comments through the Regulations.gov comment portal. Identify docket USCIS-2026-0529 in any comment. Submitted comments may become publicly available.
Prepare now, while the proposal remains pending
The proposal is not in effect, and current policy remains in place unless a final rule takes effect. Employers should monitor the rulemaking, prepare each extension with current evidence, and plan for possible RFE response and processing uncertainty. Avoid treating any prior approval as a guarantee of future eligibility.
Blasingame Law LLC provides personalized guidance to employers managing H-1B, L-1, and other work visa matters. With more than 30 years of immigration law experience, our firm helps businesses plan filings, respond to RFEs, and address workforce compliance concerns. Learn more about our business immigration solutions or contact Blasingame Law LLC to discuss your organization’s needs.
This article provides general legal information and is not legal advice. The proposed rule may change before finalization, and its application depends on individual facts. Consult an immigration lawyer or business immigration attorney regarding a specific employee, filing, or compliance issue.
